In these Conditions, the following definitions apply:
“the Supplier” shall mean Helical Technology Limited; “the Customer” means the person who accepts a quotation or offer of the Supplier for the Sale of Goods and/or the Supply of Services, or whose order for the Goods and/or services is accepted by the Supplier;
“the Contract” shall mean the contract between the Supplier and the Customer for the supply of goods and/or services in accordance with these Conditions;
“Commencement Date” means the commencement date of this agreement as set out in the Quotation / Accepted Order;
“these Conditions” means the standard terms and conditions of sale set out in this document (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Supplier;
“the Delivery Date” means the date on which the Goods and/or Services are to be delivered as stipulated in the Customer’s Order and accepted by the Supplier;
“Business Day”shall mean all day other than a Saturday, Sunday or bank holiday. Business Hours are 8:30 to 17:00 Hrs.
“Month” means a calendar month;
“the Goods” means the goods (including any installment of the goods or any parts for them) which the Supplier is to supply in accordance with these Conditions;
“the Services” shall mean the services (including any installment of the services or any parts for them) which the Supplier is to supply in accordance with these Conditions;
“Intellectual Property” means any patent, copyright, database right, moral right, design right, registered design, trade mark, service mark, domain name, metatag, utility model, unregistered design or, where relevant, any application for any such right, or other industrial or intellectual property right subsisting anywhere in the world and any intellectual property rights in know-how, documentation, and techniques associated with the Deliverables or Materials.
“in writing” includes any communications effected by letter, telex, facsimile transmission, electronic mail or any comparable means.
a) The Supplier shall supply and the Customer shall purchase the Goods and Services in accordance with the Quotation / Accepted Order which are subject to these Conditions.
b) The Contract shall be to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
a) The Supplier’s employees or agents are not authorised to make any representations concerning the Goods and Services unless confirmed by the Supplier in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
b) No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and the Supplier.
c) Sales literature, price lists and other documents issued by the Supplier in relation to the Goods and Services are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. An order placed by the Customer may not be withdrawn cancelled or altered prior to acceptance by the Supplier and no contract for the sale of the Goods and Services shall be binding on the Supplier unless the Supplier has issued a quotation which is expressed to be an offer to sell the goods and services or has accepted an order placed by the Customer by whichever is the earlier of:-
d) Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
a) No order submitted by the Customer shall be deemed to be accepted by the Supplier unless and until confirmed in writing by the Supplier’s authorised representative.
b) The specification for the Goods shall be those set out in the Supplier’s sales documentation unless varied expressly in the Customer’s order (if accepted by the Supplier). The Goods will only be supplied in the minimum units (or multiples) stated in the Supplier’s price list or in multiples of the sales outer as specified. Orders received for quantities other than these will be adjusted accordingly, illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Supplier are intended as a guide only and shall not be binding on the Supplier.
c) The Supplier reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Supplier’s specification, which do not materially affect their quality or performance.
d) No order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in writing of the Supplier on the terms that the Customer shall indemnify the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.
a) With effect from the Commencement Date the Supplier shall, in consideration of the Fees being paid in accordance with the Terms of Payment will provide the services expressly identified in the Quotation / Accepted Order or otherwise agreed under this agreement.
b) The Supplier will use reasonable care and skill to perform the services identified in the Quotation / Accepted Order or otherwise agreed under this agreement.
c) The Supplier shall use all reasonable endeavours to complete its obligations under the Schedule, but time will not be of the essence in the performance of these obligations.
d) The Supplier’s Quotation for the Services are an estimation of the charges to be levied which may be subject to change and are in no way a fixed fee.
a) The price of the Goods and Services shall be the price listed in the Quotation / Accepted Order current at the date of acceptance of the Customer’s order or such other price as may be agreed in writing by the Supplier and the Customer.
b) Where the Supplier has quoted a price for the Goods other than in accordance with the Supplier’s published price list the price quoted shall be valid for 30 days only or such time as the Supplier has specified in the Quotation / Accepted Order.
c) The Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods and Services to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (such as, without limitation, any foreign exchange fluctuation currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods and services which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.
d) Except as otherwise stated under the terms of any Quotation / Accepted Order or in any price list of the Supplier, and unless otherwise agreed in writing between the Customer and the Supplier, all prices are exclusive of the Supplier’s charges for packaging and transport.
e) The price is exclusive of any applicable value added tax excise, sales or taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods and Services, which the Customer shall be additionally liable to pay to the Supplier.
f) The price is exclusive of any applicable charges for insurance which are imposed or charged by any competent fiscal authority in respect of the Goods and Services or are deemed necessary by either the Supplier or the Customer or both parties, which the Customer shall be additionally liable to pay to the Supplier.
a) All payments required to be made pursuant to this Agreement by either party shall be made within 30 days of the date of the relevant invoice, without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law, unless expressly agreed otherwise in writing by a director of the Supplier.
b) The time of payment shall be of the essence of these terms and conditions. If the Customer fails to make any payment on the due date in respect of the price or any other sum due under these terms and conditions then the Supplier shall, without prejudice to any right which the Supplier may have pursuant to any statutory provision in force from time to time, have the right to charge the Customer interest on a daily basis at an annual rate equal to the aggregate of 4% per cent and the base rate of Yorkshire Bank Plc from time to time on any sum due and not paid on the due date. Such interest shall be calculated cumulatively on a daily basis from the payment date specified on the invoice and shall run from day to day and accrue after as well as before any judgment.
c) All payments shall be made to the Supplier as indicated on the form of acceptance or invoice issued by the Supplier.
a) Delivery of the Goods shall be made by the Supplier delivering the Goods to the place inside the United Kingdom, EU or outside the EU as specified in the Quotation / Accepted Order.
b) The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Supplier in writing. The Goods may be delivered by the Supplier in advance of the Delivery Date unless specified in an Accepted Order.
c) If the Customer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Supplier shall be entitled upon given written notice to the Customer to store or arrange for the storage of the Goods and then notwithstanding the provision of Condition 9.a of these Conditions risk in the Goods shall pass to the Customer, delivery shall be deemed to have taken place and the Customer shall pay to the Supplier all costs and expenses including storage and insurance charges arising from such failure.
d) With effect from the Commencement Date the Supplier shall, in consideration of the amount(s) being paid in accordance with the Quotation / Accepted Order will provide the services expressly identified in the schedule or otherwise agreed under this agreement.
a) Delivery of Goods to the Carrier shall be deemed as delivery to the Customer.
b) Any claim for late or non-delivery of Goods brought about by a failure of the Carrier’s fault may be assigned to the Carrier by the Supplier or the Customer.
c) The Customer must be adequately insured against any losses caused by late or non-delivery of Goods or Services.
d) Any insurance monies received by the Customer as a consequence of any late or non-delivery of Goods or Services shall be deducted from any claim against the Supplier.
e) If the Supplier fails to deliver the Goods or Services on the Delivery Date other than for reasons outside the Supplier’s reasonable control or the Customer’s or its Carrier’s fault:-
a) Risk of damage to or loss of the Goods shall pass to the Customer:
b) Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, legal and beneficial title of the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods.
c) Sub-clause 9.b notwithstanding, legal and beneficial title of the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods and any other goods supplied by the Supplier and the Customer has repaid all moneys owed to the Supplier, regardless of how such indebtedness arose.
d) Until payment has been made to the Supplier in accordance with these Conditions and title in the Goods has passed to the Customer, the Customer shall be in possession of the Goods as bailee for the Supplier and the Customer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Supplier and shall insure the Goods against all reasonable risks.
e) In the event that the Customer sells or transfers the Goods to a third party before legal and beneficial title has passed to him under these Conditions, the proceeds of the sub-sale or transfer (or such proportion as is due to the Supplier) shall be held by the Customer on behalf of the Supplier. The Customer shall ensure that such moneys are held separately from, and are in no way mixed with, any other moneys or funds, and that all moneys held on the Supplier’s behalf are identified as such.
f) The Supplier may, in accordance with the provisions of the Companies Act 2006, register any charge created by these Conditions.
g) The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Supplier, but if the Customer does so all money owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.
h) The Supplier reserves the right to repossess any Goods in which the Supplier retains title without notice. The Customer irrevocably authorises the Supplier to enter the Customer’s premises during normal business hours for the purpose of repossessing the Goods in which the Supplier retains title and inspecting the Goods to ensure compliance with the storage and identification requirements of sub-clause 9.d.
a) The Supplier may assign the Contract or any part of it to any person, firm or company.
b) The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Supplier.
a) If on delivery any of the Goods are defective in any material respect and either the Customer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery “condition and contents unknown” the Customer gives written notice of such defect to the Supplier within three business days of such delivery, the Supplier shall at its option:-
b) No Goods may be returned to the Supplier without the prior agreement in writing of the Supplier. Subject thereto any Goods returned which the Supplier is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at the Supplier’s sole discretion the Supplier shall refund or credit to the Customer the price of such defective Goods but the Supplier shall have no further liability to the Customer.
c) The Supplier shall be under no liability in respect of any defect arising from fair wear and tear, or any willful damage, negligence, subjection to normal conditions, failure to follow the Supplier’s instructions (whether oral or in writing), misuse or alteration of the Goods without the Supplier’s approval, or any other act or omission on the part of the Customer, its employees or agents or any third party.
d) Goods, other than defective Goods returned under Conditions 11.a or 11.b, returned by the Customer and accepted by the Supplier may be credited to the Customer at the Supplier’s sole discretion and without any obligation on the part of the Supplier.
e) Subject as expressly provided in these Conditions, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
f) The Customer shall be responsible to ensure that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Customer is in compliance with all applicable statutory handling and sale of the Goods by the Customer is carried out in accordance with directions given by the Supplier or any competent governmental or regulatory authority and the Customer will indemnify the Supplier against any liability loss or damage which the Supplier might suffer as a result of the Customer’s failure to comply with this condition.
a) If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:-
b) This condition applies if:-
c) If Condition 13.b applies then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
a) Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving 28 days written notice to the Customer if:
b) For the purposes of clause 13(a)(ii), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from any Agreements governed by these Terms.
c) Without affecting any other right or remedy available to it the Supplier may terminate any agreements subject to these Terms on giving not less than 2 months’ written notice to the Customer.
d) The Customer may terminate the agreements and supply of the Goods in whole or in part at any time by giving the Supplier 6 months advance written notice of cancellation. At the end of the 6 month notice period mentioned above, the Customer shall immediately pay the Supplier full cost compensation for any stock ordered to fulfil the Customer’s projections but not supplied to the Customer and for any work completed to fulfil any orders received from the Customer but not delivered, but such compensation shall not include loss of anticipated profits or any consequential loss or when the stock in question may be utilised for other immediate orders.
a) Except in respect of death or personal injury caused by the Supplier’s negligence, the Supplier will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under express terms of this contract, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Supplier’s employees or agents or otherwise) which arise out of or in connection with the supply of the Goods and Services.
b) The Customer shall indemnify the Supplier against all damages, costs, claims and expenses suffered by arising from loss or damage to any equipment (including that of third parties) caused by the Customer, or its agent or employees.
c) Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Customer shall be joint and several obligations of such persons.
d) The Supplier shall not be liable to the Customer or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations if the delay or failure was due to any cause beyond the Supplier’s reasonable control.
e) Subject to term 15(b) below the Supplier shall not, under any circumstances whatever be liable to the Customer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:
f) The Supplier shall accept liability, subject to terms 14 and 15, for goods that have passed the Supplier’s test criteria in the Supplier’s own in-house tests. The Supplier will not accept liability for goods that have not been certified by the Supplier to have passed all the tests relevant to the Supplier’s satisfaction, which had been tested in the Supplier’s own in-house test facilities.
a) The total accumulative liability accepted by the Supplier shall be capped at a maximum of 2 times the invoice price of the product times number of products proven to be defective within the warranty period or [2 x (the invoice price of the product) x (number of products proven to be defective within the warranty period)].
b) Nothing contained in these Terms and Conditions shall be construed as to limit or exclude the liability of the Supplier for death or personal injury as a result of the Supplier’s negligence or that of its employees or agents.
a) Nothing contained in these Terms and Conditions shall be construed as to limit or exclude the liability of the Supplier for fraudulent misrepresentation.
b) The Supplier shall not be liable to the Customer in the case of innocent misrepresentation made by the Supplier, its employees or agents for which the Customer is claiming losses.
c) The Supplier shall not be liable to the Customer in the case of negligent misrepresentation made by the Supplier, its employees or agents for which the Customer is claiming losses.
a) The Supplier is the owner of the Intellectual Property in the Goods and Services, unless otherwise expressly acknowledged in writing by the Supplier.
b) The Customer further acknowledges that the Intellectual Property supplied by the Supplier for the purpose of any Agreement shall remain vested at all times in the Supplier and the Customer agrees that it will not assert ownership of the Intellectual Property against the Supplier.
c) Where the Goods are made to the Customer’s specification the Customer warrants that the specification does not infringe any Intellectual Property belonging to a third party and indemnifies the Supplier in full against all actions, proceedings, claims and demands, damages, penalties, costs and expenses arising out of any such infringement.
a) The Receiving Party shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the Disclosing Party, its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain.
b) The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
c) The restrictions set out in condition 18(a) above do not apply to any use or disclosure authorised by the Disclosing Party or required by law; or any information which is already in, or comes into, the public domain otherwise than through the Receiving Party’s unauthorised disclosure.
d) This Term 18 shall survive termination of the Contracts and Agreements between the Supplier and Customer.
a) All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or sent by electronic mail:
b) Communications shall be deemed to have been received:
a) In the event that either party is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout (subject to Sub-clause 20(b)) the party shall not be deemed to be in breach of its obligations under this Agreement. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations.
b) Sub-clause 20(a) shall not apply with respect to strikes and lockouts where such action has been induced by the party so incapacitated.
c) Each party shall be liable to pay to the other damages for any breach of this Agreement and all expenses and costs incurred by that party in enforcing its rights under this Agreement.
d) If and when the period of such incapacity exceeds 6 months then this Agreement shall automatically terminate unless the parties first agree otherwise in writing).
No waiver by the Supplier of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
The provisions of the Order and the rights of the parties hereto shall be governed and construed in all respects according to the law of England and Wales and the parties submit to the non-exclusive jurisdiction of the courts of England and Wales in respect of any dispute or claim arising out of or in connection with the Contract, its subject matter or formation.